Appeals court refuses to block medical marijuana zoning order

The Arizona Court of Appeals today denied Maricopa County’s request to delay a lower court’s order requiring county officials to process by Monday the zoning application for a medical marijuana dispensary owner.

Thomas Liddy, an attorney representing the county, argued to a three-judge appellate court panel that the county could be putting its employees at risk of federal prosecution by issuing a zoning permit for a business that would be violating federal drug laws.

Jeffrey Kaufmann, the attorney representing the owners of the White Mountain Health Center marijuana dispensary, and Kelly Flood, an attorney for the American Civil Liberties Union, countered that there have been no federal prosecutions against government employees who have facilitated medical marijuana programs, either here or in other states with medical marijuana laws.

The court gave no reason for denying the stay in the decision issued only a few hours after the hearing.

The arguments made by each side are not new, and the latest ruling against Maricopa County is only one small step in an ongoing struggle to clarify the legality of Arizona’s medical marijuana program.

Maricopa County Attorney Bill Montgomery has fought the implementation of the Arizona Medical Marijuana Act since its narrow passage in 2010. He has not only argued that county employees could face federal prosecution for processing marijuana dispensary zoning applications, but that the entire state program is superseded by federal drug laws, and therefore is unconstitutional.

So far, Montgomery has failed to persuade a court on either count.

Maricopa County Superior Court Judge Michael Gordon ruled on Dec. 3 that the county must process White Mountain Health Center’s zoning application, and ordered the county to do so by Dec. 24.

Gordon also addressed the larger issue raised in the suit, saying that Arizona’s medical marijuana program is not preempted by federal law.

Montgomery appealed the ruling, and is waiting for the Court of Appeals to take the case. Montgomery’s stay, had it been granted, would have allowed the county to avoid processing White Mountain Health Center’s zoning permit until the Court of Appeals rules on the underlying case.

Liddy, who represented the county in court today, said that there’s still a possibility that the county could request a review of their stay request by the Arizona Supreme Court. But if so, the state’s high court would need to rule before next Monday in order to stop Judge Gordon’s order.

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